Constitutionalism and Pluralism: A Conflicted Relationship?

Forthcoming in A.Lang and A.Wiener (eds) Handbook of Global Constitutionalism

Edinburgh School of Law Research Paper No. 2016/21

28 Pages Posted: 10 Oct 2016  

Neil Walker

University of Edinburgh, School of Law

Date Written: October 6, 2016

Abstract

The briefest conceptual inquiry suggests why the relationship between constitutionalism and pluralism is a conflicted one. Constitutionalism speaks to the broad conviction that an institutional and normative framework for our common forms of political life can be supplied through a legal code. Pluralism offers a concept with an even wider referential scope. Yet what all variants of pluralism have in common is an emphasis upon the existence of a multiplicity and diversity of sources of whatever is central to the particular plural domain in question, and upon the need to accommodate that multiplicity and diversity in terms that are not reducible to a set ranking or any other general ordering formula. These features are present whether we are concerned with a pluralism of social and political constituencies – the type of pluralism (‘political pluralism’ for short) with which constitutionalism is most directly engaged - or with a pluralism of moral values, or world-views, or institutional forms, or even of overall normative systems. It follows that the scope for constitutionalism and pluralism both to repel and to embrace one another is apparent. The formal promise of constitutionalism typically sounds in singular terms. Constitutionalism is predicated on the idea of one overarching register of authority for the political domain as a whole, paradigmatically in the shape of the modern state. Yet the notions of unity, closure and hierarchical organisation of the duly constituted polity achievement are at odds with those of diversity, unsettlement and heterarchical accommodation we associate with the condition of political pluralism and its management. That is to say, the material circumstances and terms of engagement of constitutionalism are highly pluralistic. The sustaining of political society is today more than ever concerned with the negotiation and reconciliation of the differences in self-understanding and world-view between these individuals and groups who live together in physical or other forms of practical proximity. The success of any constitutional project in fashioning and sustaining such a polity depends on how acutely it comprehends and how effectively it addresses that basic plurality and variety, notwithstanding constitutionalism’s own formal singularity and unity. By exploring the disjunction, and associated tensions, between the formal unity and material pluralism of constitutionalism, we can capture much of the distinctive promise, limitations and challenges of the constitutional method today. In the paper, I conduct that exploration by looking at the two broad ways in which constitutionalism in practice seeks to entertain political pluralism. It does so most immediately as a matter of internal reference, operating within the confines of the constitutional order itself through what we may call ‘plural constitutionalism’. It also does so more remotely as a matter of external reference, addressing the relationship of overlap and interplay between constitutional orders through what we may call ‘constitutional pluralism’. In making these inquiries, we also address the key question of just how much continuity there is or can be between these two approaches – between plural constitutionalism and constitutional pluralism. To what extent, if at all, does it make sense to see these quite different formal architectures as the product of one and the same ‘constitutional ethic’?

Keywords: constitutionalism, pluralism, constitutional pluralism, plural constitutionalism, postnational, value pluralism, political pluralism, universalism

Suggested Citation

Walker, Neil, Constitutionalism and Pluralism: A Conflicted Relationship? (October 6, 2016). Forthcoming in A.Lang and A.Wiener (eds) Handbook of Global Constitutionalism; Edinburgh School of Law Research Paper No. 2016/21. Available at SSRN: https://ssrn.com/abstract=2849038 or http://dx.doi.org/10.2139/ssrn.2849038

Neil Walker (Contact Author)

University of Edinburgh, School of Law ( email )

Old College
South Bridge
Edinburgh, EH8 9YL
United Kingdom

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